Gujarat High Court Case Information System
Print
CR.A/644/2000 25/ 25 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 644 of 2000
With
CRIMINAL
APPEAL No. 805 of 2000
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
JAYANTILAL
CHHOTALAL SARVAIYA - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================
Appearance :
MR
KB ANANDJIWALA for
Appellant(s) : 1,
MR HL JANI, LD. ADDL. PUBLIC PROSECUTOR for
Opponent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 25/08/2011
CAV
JUDGMENT
Since
the present appeals are arising out of the common judgment and order
dated 13th June, 2000, passed by the learned Special
Judge, Junagadh, in Special Case No.08 of 1990, the appeals are
decided by this common judgment.
So
far as Criminal Appeal No.644 of 2000 is concerned, the same is
filed by the original accused against the judgment and order of
conviction and so far as Criminal Appeal No.805 of 2000 is
concerned, the same is filed by the State of Gujarat for enhancement
of sentence.
Appellant
of Criminal Appeal No.644 of 2000 has preferred the appeal under
Section 374(2) of the Code of Criminal Procedure, 1973 against the
judgment and order of conviction and sentence dated 13th
June, 2000 passed by the learned Special Judge, Junagadh, in Special
Case No.08 of 1990, whereby the
learned Special Judge has convicted the appellant for the offence
punishable under Section 7 of the Prevention of Corruption Act, 1988
and sentenced him to undergo rigorous imprisonment for a period of
one year, and also imposed fine of Rs.2,500/-, and in default of
payment of fine, sentenced him to undergo rigorous imprisonment for
a further period of three months. The learned Special Judge has also
convicted the appellant for the offence punishable under Section
13(1)(d) read with Section 13(2) of the Prevention of Corruption
Act, 1988 and sentenced him to undergo rigorous imprisonment for a
period of six months, and also imposed fine of Rs.1,500/-, and in
default of payment of fine; sentenced him to undergo rigorous
imprisonment for a further period of one month. The learned Judge
has ordered that the sentences awarded to the accused shall run
concurrently.
As
per the case of the prosecution, the appellant was serving as
Talati-cum-Mantri at village Datrana, District Junagadh. The
complainant and his brother were having a piece of land admeasuring
4.31 Acers in the sim of village. It is the case of the prosecution
that the complainant has made an application dated 27th
July, 1989 to the Mamlatdar to separate the names of both the
brother and to have different account in panchayat record and to
obtain ledger books in their names. It is the case of the
prosecution that when the said application was sent by the Mamlatdar
to the appellant for following procedure, the appellant demanded
illegal gratification of Rs.500/-, which was lastly settled to
Rs.400/-, from the complainant. It is further the case of the
prosecution that out of bribe amount of Rs.400/-, Rs.200/- was
already given by the complainant to the appellant. It is the case of
the prosecution that the appellant had told the complainant to give
remaining amount of Rs.200/- to him on 05th March, 1990
between 18.00 hours and 19.00 hours at the shop of his brother at
Mendarda.
As
the complainant was not willing to give Rs.200/- to the appellant,
he approached the Police Inspector, A.C.B., Junagadh and lodged his
complaint on 05th March, 1990 at about 14.10 hours.
Thereafter, services of two panchas were sought, facts of the case
were narrated to them and thereafter experiment of U.V. Lamp was
carried out with the help of anthrecene powder. The basic
ingredients of the anthrecene powder were explained and made
understood to the panchas as well as to the complainant. Thereafter,
currency notes produced by the complainant were smeared with
anthrecene powder. Number of notes were noted in the preliminary
part of panchnama. The said currency notes were put in the left
pocket of bush-shirt of the complainant. Thereafter, the Police
Inspector, A.C.B., gave necessary instructions to the complainant as
well as to the panchas. Thereafter, preliminary part of the
panchnama was drawn and signature of the panchas were taken below
the panchnama. Thereafter, the complainant, panchas and members of
the raiding party proceeded to Mendarda to carry out raid in a taxi.
It
is the case of the prosecution that they reached Mendarda at about
18.00 hours. The complainant and panch No.1 went towards shop of
brother of the appellant, where the appellant was to be contacted.
The panch No.2 and members of raiding party spread in the
surrounding area waiting for signal of the complainant. When the
complainant entered in the shop, accused was present in the shop.
The complainant went inside the shop whereas panch No.1 was
standing near the steps of the otta of the shop. The appellant
welcomed the complainant and offered chair just opposite to him by
saying come and sit. Thereafter, the appellant asked the
complainant as to whether he had brought the amount or not and
further told that if the complainant would give him the amount,
book would be given to him. Thereupon the complainant said that he
has brought the amount and took out the smeared currency notes from
left pocket of bush-shirt by his right hand and gave the same to
the accused, which the accused accepted by his right hand and kept
the same in the left pocket of his bush-shirt.
Thereafter,
the complainant gave pre-decided signal to the members of raiding
party. Thereupon the members of the raiding party rushed at that
place and caught the appellant. Thereafter, after giving his
identity, P.I. inquired from panch No.1 as to whether the amount has
been accepted by the appellant, to which panch No.1 replied in
affirmative. Thereafter, the P.I. told the panch No.1 to take out
the currency notes from the pocket of the bush-shirt and accordingly
panch No.1 took out the currency notes. Thereafter, experiment of
U.V. Lamp was carried out on the members of raiding party, excluding
the complainant, panch No.1 and the appellant, but fluorescent marks
of anthrecene powder was not found. Thereafter, the said experiment
was carried out on the hands the complainant where on the right hand
finger tips and palmer aspect light blue fluorescent marks were
found. On border of the bush-shirt’s pocket and inner side of pocket
also, light blue fluorescent marks were found. Thereafter the hands
of the appellant were seen in U.V. Lamp and on right hand finger
tips and on the border of the pocket and inside the pocket of the
bush-shirt, light blue fluorescent marks were found. Thereafter the
hands of panch No.1 were seen in U.V. Lamp and on both the hands,
blue colour marks were found. The number of the currency notes were
got tallied with the number noted in the preliminary panchnama.
Thereafter, Khatavahi Book of the complainant was seized. From the
book, one currency note of Rs.100/- was found, which was also seized
under the panchnama. The bush-shirt of the appellant was also
seized. Thereafter, second part of panchnama came to be drawn.
Thereafter, certain papers pertaining to the case of the complainant
also came to be seized from the Panchayat Office at Datrana.
Thereafter,
F.I.R. against the present appellant came to be registered for the
offences punishable under the Prevention of Corruption Act, 1988.
Thereafter Investigating Officer carried out investigation and
recorded statements of various persons. Thereafter, after obtaining
sanction, charge-sheet came to be filed against the
appellant-accused.
Thereafter,
vide Exhibit 13 charge was framed against the appellant. The charge
was read over and explained to the appellant, to which the appellant
pleaded not guilty and claimed to be tried.
In
order to bring home the charges levelled against the appellant, the
prosecution has examined in all four witnesses and also produced
documentary evidence in support of its case.
Thereafter,
after completing the evidence of prosecution, further statement of
the appellant under Section 313 of the Code of Criminal Procedure,
1973 came to be recorded wherein the appellant has categorically
denied the incident of trap. He has denied the case of demand. The
appellant in his further statement submitted that an application for
making entries regarding the land was received and he performed the
necessary procedure by issuing notice under Section 135D of the Land
Revenue Code. Thereafter, he recorded statement of both the brothers
and also pasted one copy of the said notice on the notice board of
Gram Panchayat. The appellant has also submitted that as huge amount
is to be levied towards taxes from the complainant and his brother,
he told the complainant to pay up the amount first. Thereafter some
dispute arose between the brothers with regard to payment of tax
(tagavi) amount. The complainant pressurised the appellant to
recover the said tax amount from his brother. But brother of the
complainant, viz. Arjan Meghji, did not come to give statement
regarding tax amount and as there was no confirmation from Arjan
Meghji, the proceeding was pending. The appellant has categorically
stated that on the date of trap, neither the complainant came to him
nor he had accepted any money from him. The appellant has also
stated that on the day of incident, after the duty hours, he was
sitting in the shop of his brother where the complainant came and
told him to accept the panchayat tax amount and took out the
currency notes from his pocket and tried to give the same to him.
The appellant refused to accept the same saying that the same cannot
be accepted here and in that process, his hand might have touched
the currency notes. He has also submitted that when this talk going
on, all of a sudden, members of the raiding party rushed into the
shop and raid was carried out.
After
considering the oral as well as documentary evidence produced on
record and after hearing the parties, the learned Special Judge,
Junagadh vide impugned judgment and order dated 13th
June, 2000 held the appellant-accused guilty to the charges
levelled against him as mentioned aforesaid.
Being
aggrieved by and dissatisfied with the impugned judgment and order
of conviction and sentence passed by the learned Special Judge,
Junagadh, the appellant has preferred the present appeal.
Heard
Mr.K.B. Anandjiwala, leaned counsel for the appellant and Mr.H.L.
Jani, learned Additional Public Prosecutor for the respondent-State.
Mr.Anandjiwala,
learned counsel appearing for the appellant, has contended that the
judgment and order of conviction and sentence is erroneous, illegal
and unwarranted on the facts of the case. He has also contended that
in the case of corruption, demand of illegal gratification is vital
part, which the prosecution has to prove beyond reasonable doubt. It
is submitted by learned counsel for the appellant that so far as
initial demand is concerned, the evidence is of only the complainant
and there is no corroboration available to the evidence of the
complainant from any independent sources. He has read oral evidence
of P.W. No.1-complainant and contended that the appellant had called
the complainant at the Gam Chora and told that his work will be done
only after the appellant would have received amount. Therefore, P.W.
No.1 asked as to how much amount he has to pay, to which the
appellant told to give Rs.500/-. The P.W. No.1 made request to
reduce the amount as he is a poor person, but the appellant was not
agreed with the request of the P.W. No.1. Therefore, P.W. No.1 gave
Rs.100/- to the appellant at that point of time. Again after lapse
of some time, the appellant called P.W. No.1-complainant and asked
him for money. At that time, again P.W. No.1 paid Rs.100/- to the
appellant. Thereupon, the appellant told the complainant that as to
why he is giving money in installments and also told that if the
complainant wants book, then between 18.00 hours and 19.00 hours,
remaining amount should be given to him. As the complainant was not
ready to give the said amount, he has filed the complaint.
Mr.Anandjiwala has read the said evidence and contended that in
connection with this evidence of complainant, some corroboration is
required, but the prosecution has failed to corroborate the said
evidence of P.W. No.1-complainant. It is further contended by the
learned counsel for the appellant that on the day of trap, the
complainant alleged to have given Rs.200/- to the appellant, which
is not in connection with the demand of Rs.500/- which is alleged to
be made by the appellant. It is also contended by Mr.Anandjiwala
that there was no agreement to accept Rs.400/- and therefore, on the
day of trap, as alleged, Rs.200/- was paid and accepted by the
appellant is in direct conflict with the initial demand of Rs.500/-.
Thus, when the prosecution has failed to prove its case for demand,
the learned Special Judge has erred in convicting the appellant. He
has also contended that in examination-in-chief, the complainant
says that P.I. sprinkled the powder on the currency notes and the
said notes were shown in lamp, which showed light blue colour mark
and thereafter the said notes were put in his bush-shirt pocket. He
has further contended that this part of evidence does not show as to
which powder was used. He has also contended that it was the case of
the prosecution that anthrecene powder was used, but the prosecution
has failed to prove the said contents from the oral evidence of P.W.
No.1-complainant. He has further contended that the learned Special
Judge has taken into consideration the contents of the F.I.R., which
is not substantive part of evidence. The F.I.R. can be used only for
the purpose of corroborating or contradicting the maker of the same.
He has also contended that for taking into consideration the
contents of panchnama, panch has to depose about the same whereas in
the instant case, the panch has failed to prove the contents of the
panchnama. He has also contended that the panchnama is drawn by the
Trapping Officer and it was not dictated by the panch witness.
Mr.Anandjiwala has further contended that in the cases of
corruption, three important ingredients has to be establish beyond
reasonable doubt by the prosecution, viz. (i) initial demand of
illegal gratification; (ii) an agreement to pay the same; and (iii)
acceptance of the same as per agreement. He has read further oral
evidence of P.W. No.1 and contended that the prosecution has failed
to prove initial demand as well as second demand made by the
appellant. He has also read cross-examination of this witness and
contended that the said amount accepted by the appellant is the
legal dues, which is required to be recovered from the complainant
and is not illegal gratification. He has also read oral evidence of
P.W. No.2-panch witness at Exhibit 19 and contended that the
prosecution has failed to prove the contents of complaint and
panchnama at Exhibit 21 through oral evidence of this witness. He
has also contended that the prosecution has failed to prove that
appellant has made demand in presence of this panch witness. He has
contended that in the instant case, the prosecution has failed to
prove that the amount was accepted towards illegal gratification and
for no other purpose. He has further contended that for determining
this aspect, pre-acceptance talk is the essential part of the
evidence. In the instant case, the same is in direct conflict with
each other and also in direct conflict with the panchnama. He has
further contended that prosecution has failed to prove seizing and
sealing of muddamal beyond reasonable doubt. He has contended that
recovery of trap amount is not proved beyond reasonable doubt.
Mr.Anandjiwala has read explanation of the appellant recorded under
Section 313 of the Code of Criminal Procedure, 1973 and contended
that the appellant has proved it defence and therefore, atleast
benefit of doubt should have been given to the appellant. He has
further read Exhibit 27, Village Form No.8B and contended that this
document clearly shows that there was some legal dues to be paid by
P.W. No.1-complainant and the amount in question, which was accepted
by the appellant, is the part of the said legal dues and not the
illegal gratification. He, therefore, contended that the case
against the appellant is absolutely false and is required to be
acquitted. He has contended that when the documentary evidence is
proved, then the learned Special Judge must have to consider the
probable defence in favour of the appellant.
Mr.Anandjiwala
has further read oral evidence of P.W. No.3 at Exhibit 33 and
contended that this witness in his evidence clearly stated the work
to be performed by the appellant, which include receiving amount of
panchayat taxes, education tax, revenue tax, tagavi, etc., which
shows that the amount accepted by the appellant was towards the tax
amount and not illegal gratification. He has read Exhibit 51 to 57
and contended that the prosecution has failed to prove the said
documents. He has further read oral evidence of P.W. No.4-Trapping
Officer at Exhibit 45 and contended that he is a police officer and
his evidence cannot be considered straightway without any
corroboration. He has also contended that the prosecution has failed
to prove its case beyond reasonable doubt through oral evidence of
this witness. This witness has failed to prove the recovery of trap
amount from the possession of the appellant. This witness has also
failed to prove the experiment, which was carried out prior to the
trap and after the trap. He, therefore, contended that looking to
the evidence produced on record and circumstantial evidence,
prosecution has failed to prove its case beyond reasonable doubt
against the appellant and therefore, appeal is required to be
allowed and appellant is required to be acquitted from the charges
levelled against him.
So
far as Criminal Appeal No.805 of 2000, i.e. appeal filed by the
State of Gujarat for enhancement of sentence is concerned,
Mr.Anandjiwala has contended that the alleged incident of offence
has occurred in the month of March, 1990. Nearly 22 years have
passed from the date of alleged offence. He has also contended that
as stated above, when the prosecution has failed to prove its case
beyond reasonable doubt, no question can arise for enhancement of
sentence. He, therefore, contended that the appeal filed by the
State Government for enhancement of sentence is required to be
dismissed.
As
against this, Mr.Jani, learned Additional Public Prosecutor, has
contended that the judgment and order passed by the learned Special
Judge is absolutely just and proper. He has contended that the
prosecution has proved its case beyond reasonable doubt. He has
contended that looking to the overall facts and circumstances of the
case, circumstantial evidence and evidence produced on record, the
order passed by the learned Special Judge is absolutely just and
legal and is not required to be interfered with. Mr.Jani has read
oral evidence of P.W. No.1-complainant and contended that initial
demand is proved beyond reasonable doubt. He has also read further
oral evidence of the complainant and argued that in connection of
the oral evidence of P.W. No.1, conduct of the appellant is required
to be considered in light of the provision of Section 8 of the
Evidence Act. He has further contended that the appellant demanded
Rs.500/- as illegal gratification from the P.W. No.1-complainant.
The appellant has called the complainant at Gam Chora and told the
complainant that his work will be done only after he would pay the
amount and told to give Rs.500/-. Thus, the initial demand of
Rs.500/- is proved through the oral evidence of P.W. No.1. This
witness has stated in his evidence that therefore, he had given
Rs.100/- to the appellant at that point of time. Mr.Jani has further
contended that on the day of trap P.W. No.1 had visited the shop of
brother of the appellant where the appellant called the complainant.
At that time P.W. No.2-panch witness was with him and in presence of
P.W. No.2, the appellant asked the complainant as to whether he has
come with money or not. Thus, second demand is also proved beyond
reasonable doubt. This second demand is corroborated by the evidence
of P.W. No.2. On being demanded money by the appellant, P.W. No.1
gave the currency notes smeared with anthrecene powder to the
appellant, which was accepted by the appellant and the same was
inserted into left pocket of the shirt. Thus, acceptance is also
proved beyond reasonable doubt from the oral evidence of P.W. No.1.
He has further contended that in a case of corruption when demand
and acceptance is proved beyond reasonable doubt, then it can be
said that the amount accepted by the accused is in connection with
the illegal demand made by him. He has also contended that when the
search was carried out, the trap amount was recovered from the
possession of the appellant and presence of anthrecene powder was
found on the hand of the appellant. Thus, recovery is also proved
beyond reasonable doubt. Mr.Jani has read oral evidence of P.W. No.2
and contended that this witness has supported the case of the
prosecution. He is a public servant and his integrity cannot be
doubted. He has no enmity with the appellant to falsely involve the
appellant in a case. He has also contended that prior to the first
part of panchnama, complaint was read over to the panch witnesses
and it was signed by them. This witness has narrated the whole
incident as to how the demand was made by the appellant in his
presence and acceptance by the appellant. P.W. No.2 is an
independent witness and has supported the case of the prosecution.
He has further read the evidence of this witness and contended that
search was carried out in his presence and experiment of U.V. Lamp
was carried out in his presence. He has further contended that
anthrecene powder was found on the hand on shirt of the appellant.
The said shirt was taken as muddamal and the same is identified by
P.W. No.2-panch witness. Mr.Jani has contended that thus, the
evidence of P.W. No.2 is in corroboration with the evidence of P.W.
No.1. Mr.Jani has further read the oral evidence of Trapping Officer
and contended that from the evidence of this witness, panchnama,
complaint and recovery is proved beyond reasonable doubt. He has
further contended that when the signal was given by P.W. No.1, the
Trapping Officer rushed to the place and carried out the search and
from the possession of the appellant, trap amount was found. Thus,
there arises no question to say that the Trapping Officer has not
properly carried out the search as per the provisions of law. He
has contended that even if it is assumed that there is some
contradiction in the oral evidence of the complainant and witnesses
as per the say of Mr.Anandjiwala, it is not fatal to the prosecution
case, more particularly when demand, acceptance and recovery is
proved beyond reasonable doubt. He has further contended that the
appellant has failed to establish the probable defence. Thus, when
demand, acceptance and recovery is proved beyond reasonable doubt
and when the appellant has failed to establish probable defence,
appeal of the appellant is required to be rejected.
So
far as Criminal Appeal No.805 of 2000, i.e. appeal filed by the
State of Gujarat for enhancement of sentence is concerned, Mr.Jani
has contended that as stated above, demand, acceptance and recovery
is proved beyond reasonable doubt, sentence awarded to the appellant
is inadequate. He has further contended that the learned Special
Judge has committed error in showing leniency to undeserving person.
He has also contended that the learned Special Judge has failed to
consider the provisions of Section 13(2) of the Prevention of
Corruption Act, 1988. Mr.Jani has further contended that when the
demand is proved, the appellant shall be punished with imprisonment
of either description for a term which may extend to three years, or
with fine, or with both. The learned Special Judge has He,
therefore, contended that the sentence imposed upon the appellant is
required to be enhanced.
Heard
learned counsel for the respective parties and perused the papers
produced before me. I have also considered the submissions advanced
by the learned counsel for the parties. I have perused the oral
evidence of P.W. No.1-complainant and it appears from the oral
evidence of this witness that the appellant had called P.W. No.1 at
Gam Chora and told that his work will be done only after he would
pay an amount of Rs.500/-. Thus, initial demand is proved from the
oral evidence of this witness. It also appears from the oral
evidence of this witness that again after some time, the appellant
had demanded the amount from P.W. No.1. As per the evidence of this
witness after lodging the complaint with A.C.B., when P.W. No.1 and
P.W. No.2 went to the shop of brother of the appellant, where they
decided to meet, the appellant specifically asked P.W. No.1 as to
whether he has come with money or not. Thus, second demand is also
proved beyond reasonable doubt. This second demand is corroborated
by the evidence of P.W. No.2. The evidence of P.W. No.2 is in
corroboration with the evidence of P.W. No.1. I have also perused
oral evidence of P.W. No.2-panch witness. This witness has supported
the case of the prosecution. He has specifically admitted that in
his presence, the appellant had demanded the money from the
complainant and the same was accepted by the appellant. Thus, demand
and acceptance is proved beyond reasonable doubt. It appears from
the papers that when search was made out, the amount in question was
found out from the possession of the appellant and light blue marks
of anthrecene powder was also found from the hand of the appellant.
Thus, recovery is also proved beyond reasonable doubt. The P.W.
No.2-panch has narrated the whole case of the prosecution. The
evidence of P.W. No.1-complainant is corroborated by the evidence of
P.W. No.2-panch witness, who is an independent witness. It appears
from the evidence of P.W. Nos.1 and 2 that their evidence is free
from all doubt and infirmities about the demand raised by the
appellant. The P.W. Nos.1-complainant and P.W. No.2-panch witness
werer not having any enmity with the appellant. They were not biased
and they have no interest to involve the appellant in a false case.
A close and careful scrutiny of the evidence of P.W. Nos.1 and 2
suggests that these witnesses have not made any mistake in narrating
the entire episode in their deposition, which inspires confidence
about their credibility and reliability. In the instant case, main
part of the prosecution in relation to the demand raised by the
appellant is corroborated by the evidence of P.W. Nos.1 and 2
coupled with the contents of panchnama.
So
far as contention raised by Mr.Anandjiwala that panchnama at Exhibit
21 is not dictated by panchas, but straightway drawn by Trapping
Officer, is concerned, I have perused panchnama at Exhibit 21 and
also perused oral evidence of P.W. No.2 in this regard. It appears
from the oral evidence of P.W. No.2 that panchnama was drawn as per
the say of panchas. The panchas have explained in the panchnama that
the said panchnama (Exhibit 21) is written as per their say and it
is true and proper. It appears that P.W. No.2 has specifically
admitted in his evidence that the said panchnama at Exhibit 21 was
drawn in their presence and also submitted that the contentions of
the said panchnama was verified by them and it was proper and as per
their say. So, looking to the explanation made by P.W. No.2,
contention of learned counsel for the appellant that panchnama was
dictated by the Trapping Officer and not by the panchas is not fatal
to the case of the prosecution. So far as the contention of
Mr.Anandjiwala, learned counsel for the appellant, that there was
some outstanding dues in the name of P.W. No.1-complainant, which
was required to be recovered from him is concerned, I have perused
Exhibit 27 document. At the end of that document, figure of
Rs.2,485/- is shown and other amount is also shown. I have also
perused probable defence of the appellant and as per the probable
defence of the appellant, he has accepted Rs.200/- from P.W.
No.1-complainant towards outstanding dues of P.W. No.1. As per
Exhibit 27 document total outstanding dues is more than Rs.2,485/-,
then why the appellant has accepted only Rs.200/- from P.W.
No.1-complainant is not explained by the appellant. The appellant
has failed to explain this aspect of the matter in his further
statement recorded under Section 313 of the Code of Criminal
Procedure, 1973. Thus, the probable defence of the appellant cannot
be considered in his favour. I have also perused Section 20 of the
Prevention of Corruption Act, 1988, which reads as under:
“Section
20-Presumption where Public Servant accepts gratification
other than legal remuneration:– (1)
Where in any trial of an offence punishable under section 7 or
section 11 or clause (a) or clause (b) of sub-section (1) of Section
13 it is proved that an accused person has accepted or obtained, or
has agreed to accept or attempted to obtain, for himself or for any
other person, any gratification (other than legal remuneration) or
any valuable thing from any person, it shall be presumed unless the
contrary is proved that he accepted or obtained, or agreed to accept
or attempted to obtain, that gratification or that valuable thing,
as the case may be, as a motive or reward such as is mentioned in
section 7 or, as the case may be, without consideration or for a
consideration which he knows to be inadequate.
(2)
Where in any trial of an offence punishable under section 12 or
under clause (b) of Section 14, it is proved that any gratification
(other than legal remuneration) or any valuable thing has been given
or offered to be given or attempted to be given by any accused
person, it shall be presumed unless the contrary is proved that he
gave or offered to give or attempted to give that gratification or
that valuable thing, as the case may be, as a motive or reward such
as is mentioned in Section 7 or, as the case may be, without
consideration or for a consideration which he knows to be
inadequate.
(3)
Notwithstanding anything contained in sub-sections (1) and (2), the
court may decline to draw the presumption referred to in either of
the said sub-sections, if the gratification or thing aforesaid is,
in its opinion, so trivial that no inference of corruption may
fairly be drawn.”
I
have perused the said provision of law and it appears that the main
ingredient of Section 20 of the Prevention of Corruption Act is
proved beyond reasonable doubt. I have also perused explanation of
the appellant. The appellant has failed to explain that for what
purpose he has accepted the said amount and how the said amount is
recovered from his possession. In further statement recorded under
Section 313 of the Code of Criminal Procedure, It is the duty of the
appellant to rebut the presumption drawn against him. In the instant
case, the appellant has failed to rebut the presumption drawn
against him.
The
appellant has failed to rebut the presumption by leading probable
defence. Thus, when demand and acceptance is proved and when the
appellant has failed to rebut the presumption under Section 20 of
the Prevention of Corruption Act, 1988, I am of the opinion that
prosecution has proved its case beyond reasonable doubt. I have not
found anything to accept the defence version. The learned Special
Judge has rightly convicted the appellant for the offence under
Section 7 and under Section
13(1)(d) read with Section 13(2) of the Prevention of Corruption
Act, 1988. I have also perused the judgment relied upon by
Mr.Anandjiwala, learned counsel for the appellant, reported in
1998(1) GLH 924. I have perused the judgment and order of conviction
and sentence and also perused evidence of prosecution witnesses.
Trapping Officer, who has recorded complainant of the complainant,
P.W. No.1. Thereafter, two panchas were called by the Trapping
Officer and then preliminary part of panchnama was drawn and then
later on the Trapping Officer carried out search and the amount is
recovered from the possession of the appellant. Thereafter,
statement of appellant, panchas and other witnesses came to be
recorded by the Trapping Officer. I have considered the contention
raised by the learned counsel for the appellant that Trapping
Officer cannot be the Investigating Officer, I am of the opinion
that in real sense, when most of the investigation was completed
during the investigation, except the issue of sanction, the said
contention raised by the learned counsel for the appellant is not
fatal to the case of the prosecution.
As
per above observation, I found that demand of illegal gratification
made by the appellant is proved beyond reasonable doubt through oral
evidence of P.W. No.1-complainant and P.W. No.2-panch witness as
well as through documentary evidence produced on the record.
Presence of anthrecene powder is also found on the hands of the
appellant-accused and the appellant has failed to explain the
presence of anthrecene powder. As per the provision of Section 5 of
the Prevention of Corruption Act, 1988, presumption is required to
be drawn against the present appellant and when the appellant has
failed to rebut the said presumption, defence version cannot be
considered, which is tried to establish by the learned counsel for
the appellant. Hence, Criminal Appeal No.644 of 2000, i.e. appeal
against conviction filed by the appellant, is hereby dismissed.
A
public servant is expected to serve or to perform his/her duties
with utmost honesty and devotion. In the instant case, the
appellant, who is a public servant, has demanded the amount of
Rs.500/- and accepted the same from the complainant. This conduct of
the appellant is required to be looked into. This shows that the
appellant is guilty of criminal misconduct.
So
far as Criminal Appeal No.805 of 2000, i.e. appeal filed by the
State of Gujarat for enhancement of sentence is concerned, it
appears that the alleged incident has occurred in March, 1990 and
today after more than 21 years, this appeal is finally heard. Thus,
more than 21 years have passed from the date of alleged offence. I
have also considered the submission of learned counsel for the
appellant that as the appellant is removed long back from service,
he has suffered sufficiently. Looking to the facts of the case, I am
of the opinion that after such a long time it will not be
appropriate to enhance the sentence awarded by the learned Special
Judge. Hence, appeal of the State Government for enhancement is
hereby dismissed.
Hence,
in view of the foregoing reasons, Criminal Appeal No.644 of 2000,
i.e. appeal filed by the appellant against conviction, is hereby
dismissed. The judgment and order of conviction and sentence dated
13th
June, 2000, passed by the learned Special Judge, Junagadh, in
Special Case No.08 of 1990, is
hereby confirmed qua appeal against conviction. The appellant is on
bail. His bail bond shall stand cancelled. The
appellant is, therefore, directed to surrender himself before the
Jail Authority within a period of four weeks from today to serve the
remaining sentence, if any, failing which the Court concerned is
directed to issue Non-bailable warrant against the appellant to
effect his arrest. Record and Proceedings, if any, be sent back to
the trial Court concerned, forthwith.
So
far as Criminal Appeal No.805 of 2000, i.e. appeal filed by the
State of Gujarat for enhancement of sentence, is concerned, the same
is hereby dismissed and the judgment and order of conviction and
sentence dated 13th June, 2000, passed by the learned
Special Judge, Junagadh, in Special Case No.08 of 1990, is hereby
confirmed qua appeal for enhancement. Record and Proceedings, if
any, be sent back to the trial Court concerned, forthwith.
(Z.
K. Saiyed, J)
Anup
Top